Crenshaw Engineering & Construction Co. v. New York Municipal Railway Corp.

Majority

p. 665

Crenshaw Engineering and Construction Co., Inc., Appellant, v. New York Municipal Railway Corporation, Respondent. Lindley M. Garrison, as Receiver of New York Municipal Railway Corporation, Respondent; Ætna Casualty and Surety Company et al., Appellants, Impleaded with Another.

(Argued May 12, 1925;

decided June 2, 1925.)

Headnote

Contract — action to recover upon quantum meruit —■ counterclaim for alleged breach of contract.

Crenshaw Eng. & Construction Co. v. N. Y. Munic. Ry. Corporation, 209 App. Div. 893 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1924, which affirmed a judgment in favor of defendant receiver against the plaintiff entered upon a verdict directed by the court and reversed a judgment in favor of defendants, appellants, dismissing said receiver’s counterclaim against them and directed judgment against them on said counterclaims. Initially the plaintiff, a contractor, sued the railway corporation and the receiver thereof to recover upon a quantum meruit for the claimed breach of a construction contract. About a year later the receiver brought a counter action against the contractor and the sureties on its performance bond, claiming damages for breach of contract against the contractor and against the sureties. These two actions were

p. 666

consolidated by an order entered on the eve of a trial of the contractor’s suit.

John W. Hogan, Paul Bonynge and William H. Harding for appellants.

D. A. Marsh, George D. Yeomans and Trabue Carswell for respondents.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.